Workplace Mask Mandates in Light of Cal/OSHA Requirements and the COVID Spike

Haydee Garbero Hooten, Attorney at Moore Brewer Wolfe Jones Tyler & North.

Credit unions, as both employers and businesses open to the public, have been juggling competing federal, state and local COVID-19-related guidance and orders[1] since the pandemic began. The CDC initially relaxed its nationwide mask guidance for fully vaccinated individuals in May of this year, and the State of California followed suit on June 15. Cal/OSHA then modified its COVID-19 Prevention Emergency Temporary Standards applicable to employers effective June 17 to largely reflect the CDPH order, and it seemed as if everything was moving in the right direction.

However, this brief reprieve from mask-wearing mandates appears to be in jeopardy with the spike in COVID cases due to the Delta variant.  Many people are understandably nervous about how the increase in COVID-related cases will affect public health mandates, which are evolving rapidly. For example, the Los Angeles County Public Health Department (LAPHD) reinstated its mask mandate on July 22 to require the use of face masks for all individuals ages two and over in all indoor public settings, including public and private businesses, regardless of vaccination status. Other counties indicated that they may follow suit.

Then on July 27, the CDC announced its recommendation that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission (though they might choose to do so regardless of transmission level, particularly if they or someone in their household is immunocompromised, at increased risk for severe disease, or unvaccinated). In response, the CDPH updated its Guidance for the Use of Face Coverings on July 28 to recommend masks for indoor public settings, regardless of vaccination status. Yolo and Sacramento counties have since reinstated mask mandates for indoor public spaces beginning July 30.

The landscape can be confusing, and any guidance or public health order generally allows for other more restrictive or protective orders to take precedence, so it’s important to understand the requirements at the federal, state, and local level in order to determine the appropriate course for the credit union and each individual branch. While the information in this article is current as of the date of publication, public health mandates continue to evolve. Credit unions are encouraged to seek out the latest guidance and consult with legal counsel to ensure compliant policies and practices.

Rules for Businesses Operators

Although the CDPH now recommends masks for everyone in indoor public settings regardless of vaccination status, the June 15 order applicable to businesses is still in effect. In the private business sector, absent a more restrictive local mask order (e.g., Los Angeles County, Sacramento County, Yolo County), masks are not currently required for fully vaccinated individuals, except in certain settings where masks are required for everyone regardless of vaccination status, such as on public transportation and in healthcare settings. Masks remain required for unvaccinated individuals in indoor public settings and businesses, which includes members visiting branches. Business operators, including credit unions, have the option to either require proof of vaccination status, post information and allow individuals to self-attest (the honor system), or to simply require masks for all visitors.

In light of the updated mask recommendations, it’s unclear whether the CDPH will also modify its June 15 order to take a more restrictive approach for all businesses, but business owners have the option to require masks nonetheless.

Rules for Employers

Cal/OSHA regulates health and safety standards for California’s employers, which may be more restrictive than those applicable to the state at large. Absent more restrictive local mandates (e.g., Los Angeles County, Sacramento County, Yolo County, etc.), employers currently still have some options.

Under the Cal/OSHA standards, employers can decide whether to require all employees to wear face coverings indoors or limit the wearing of face coverings to limited circumstances. In accordance with the recently revised Emergency Temporary Standards: 

  1. Fully vaccinated employees do not need to wear a face covering indoors, but they may do so at their option without fear of retaliation. If an employer chooses to permit fully vaccinated individuals to forego a mask, it must document and maintain a record of their vaccination status. Employers can choose whether to allow these employees to self-attest their vaccine status or require written proof (either by retaining a copy or noting that it was provided). 
  1. Unvaccinated employees are required to wear face coverings, unless they qualify for one of the following exemptions:

    • Medical condition, mental health condition, or a disability for whom wearing a face covering could obstruct breathing or who are otherwise unable to remove a face covering without assistance.
    • Where the ability to see the mouth is essential for communication, such as those who are hearing impaired, or those communicating with the hearing impaired.
    • People for whom wearing a face covering would create a risk as they work as determined by local, state, or federal regulators, or workplace safety rules.
  1. The employer must keep a record of either the self-attestation of the vaccination status or a copy, or record, of the written vaccination proof. This must be kept confidential and only shared with those within the organization that have a need-to-know in order to enforce the face covering policy. An employee is under no obligation to provide their vaccination status to the employer but, if they choose not to do so, they must be treated as unvaccinated.
  1. An employer can choose to follow a more stringent approach than the Cal/OSHA standards and require all employees to wear face coverings indoors regardless of vaccination status, unless the employee qualifies for an exemption outlined above.
  1. Face coverings do not need to be worn when the employee is alone in a room or vehicle, or when eating or drinking.
  1. Outdoors, allow all employees (regardless of vaccination status) to be without a face covering, though unvaccinated employees must be warned to wear a face covering where it is not possible to maintain six feet of separation with other people.

Unvaccinated employees may wear their own face coverings while in the workplace.  Otherwise, employers must provide unvaccinated employees, and vaccinated employees upon request, NIOSH-certified respirator face coverings for voluntary use when working indoors or traveling in a vehicle with others.

Employees should be told about the face covering policy in a way that is clear, concise and easy to understand, preferably in writing.  It should describe when and where the face covering must be worn, when they are not required to be worn, and the consequences of not following the policy, such as disciplinary action which may result in termination. 

If an employee does not comply with the policy, the employer should first have a conversation with the employee and find out why they are not wearing a face covering.  Engage in the interactive process if the employee qualifies for an exemption that may require an accommodation.

If an accommodation is not needed, Employers should make sure the employee understands the policy, the legal requirement for the mandate as well as the health and safety basis behind it. Until now, Cal/OSHA standards have been more stringent than CDC guidance, and employees don’t always understand that employers can be held to, or choose to impose, a stricter standard. Finally, remind the employee that the policy can be enforced with disciplinary action if the policy is violated without justification.

With updated mask recommendations from the CDC and CDPH, it’s unclear whether Cal/OSHA will again modify its Emergency Temporary Standards to ensure consistency with state and federal guidance. Regardless, we know that a number of counties are actively reviewing those recommendations and considering their own next steps. Rules regarding workplace safety continue to be fluid, so employers are encouraged to review their policies frequently and update them as changes in the law, health and safety guidance and workplace circumstances may require.

Article by Haydee Garbero Hooten, attorney at Moore Brewer Wolfe Jones Tyler & North.

[1] In addition to guidance from the U.S. Centers for Disease Control and Prevention (CDC), California Credit unions look to guidance and orders from the California Department of Public Health (CDPH), the California Division of Occupational Safety and Health (DOSH, better known as Cal/OSHA), and city/county public health departments.

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